Who’s right? Is the announcement a “gamechanger,” as Joe Romm thinks, or “a well-timed, well-orchestrated press release,” as Cowan calls it? In part, the different answers reflect different measures of success, a point to which I will return in a moment.

But, first, a little background. Back in 2011, the parties to the UN Framework Convention on Climate Change adopted the Durban Platform, which launched negotiations to develop a new legal instrument to limit global greenhouse gas emissions post-2020. The Durban Platform negotiations are to be completed and a new agreement adopted in December 2015 at the Paris conference of the parties. A decision adopted last year in Warsaw called on states to communicate their intended national contributions to the new agreement well in advance of the Paris meeting. What the United States and China unveiled in Beijing – although generally characterized as an “agreement” or “pact” – were their intended national emission targets under the 2015 agreement.

At least four metrics are relevant in evaluating the joint announcement:

First, do the announced targets put us on a pathway towards limiting climate change to safe levels? Safety involves value judgments, of course, but most scientists believe that warming of more 1.5-2° C above pre-industrial levels would result in dangerous impacts – impacts that most people would wish to avoid. (The earth is already about .8 degrees warmer than pre-industrial level, so we’re almost halfway there.) Even the most ardent boosters of the US-China deal don’t claim that, by itself, it will put the world on a 2° pathway, only that it is a first step.

Second, do the targets announced by the United States and China represent a significant improvement over business as usual? Or, to put it differently, will achieving them require the US and China to significantly ratchet up their level of effort? Here, opinions differ widely, because they depend on judgments about what would happen in the absence of the targets, which in turn depend on assumptions about the economy, technology, and government policies more generally – all of which are highly uncertain. Who would have predicted, ten years ago, the Great Recession and the rapid expansion of fracking, both of which have had a huge influence on US emissions? So it is perhaps not surprising that some analysts say the US-China announcement “doesn’t change things much,” while others think it represents a major advance. Climate Interactive, for example, calculates that the US-China targets, if fully implemented, would reduce carbon dioxide emissions by about 650 billion tons through 2100 – and if other countries follow suit, taking similar targets, global emissions would be reduced by about 2500 billion tons through 2100.

Copenhagen, December 17 – With the hours counting down to the end of the Copenhagen conference, real substantive negotiations have yet to begin. Instead, the focus has been almost exclusively on procedure. All week, the Danes have wanted to put forward their own compromise text, which would be negotiated in a smaller group – the approach typically used to hammer out an agreement. But some developing countries – most notably Sudan, Bolivia and Venezuela (apparently with the (at least) tacit support of China) — have rejected this approach, arguing that it lacks transparency and is hence illegitimate. Instead, they have insisted that the only “legitimate negotiating process” is to continue to negotiate on the basis of the heavily bracketed text that emerged over the last two years in the two ad-hoc working groups, in negotiating groups open to participation by all parties. In my view, this process virtually guarantees that the Copenhagen conference will not produce a meaningful agreement, since the texts emerging from the two ad hoc working groups are a mess, with multiple options within options, and negotiating them in an open-ended group, with hundreds of delegations, is a prescription for deadlock.

The refusal by some developing countries to allow the Danes to introduce a text or to negotiate in a smaller group is made in the name of ensuring a legitimate, transparent, democratic process. But another way of understanding it is as a cynical effort by certain countries to use procedural objections to prevent a substantive agreement. Yesterday, after the Danes said they would table new texts, developing countries objected and the formal meetings were suspended for most of the day while the Danes consulted with developing countries about how to proceed. Reportedly, the G-77 (the developing country negotiated group) refused to participate in a smaller group organized by the Danish presidency to have substantive negotiations.

Today, in a desperate effort to move from procedure to substance, the Danes accepted the procedural approach insisted upon by developing countries. They promised not to introduce any new texts, and convened two “contact groups” that are open-ended in participation, to consider the texts forwarded from the ad hoc working groups. Meanwhile, it appears increasingly likely that the conference outcome will be a short political declaration largely devoid of substance, and a procedural decision to continue the “process,” such as it is. The ultimate question, of course, is whether there is a deal to be had that bridges the gap between the US, which wants a common legal framework for developed and developing countries (including common provisions on monitoring, reporting and verification); the major developing country economies, which want to preserve the strong differentiation reflected in Kyoto; and the European Union, which would be willing to commit to another round of Kyoto-like targets, but only if the US is subject to a comparable regime and developing countries are willing to join a new legal agreement that subjects them to stronger commitments.

December 17th, 2009 - 10:35 AM EDT | Comments Off on The Illegitimacy of “Legitimacy”http://opiniojuris.org/2009/12/17/the-illegitimacy-of-%e2%80%9clegitimacy/ |

Monday, December 14 – The climate negotiations ground to a halt for much of today, as negotiators debated the organization of work for the second and final week of the meeting. The ostensible cause of the breakdown was concern among (some?) developing countries that the Kyoto Protocol (KP) track in the negotiations is moving more slowly, and getting less attention, than the Convention track (the so-called Long-Term Cooperation Action track, or LCA) (although since the LCA track is itself moving very slowly, it is a bit difficult to understand the concern). For many members of the G-77, the differentiation enshrined in the Kyoto Protocol between developed countries (which have quantified emission reduction targets) and developing countries (which do not) is sacred. All last week, developing countries had been emphasizing the importance of continuing the Kyoto Protocol, rather than merging it into a single comprehensive agreement that addresses both developed and developing countries (as the EU, Japan and other industrialized countries would prefer). At the procedural level, this developing country position is reflected in a desire to maintain the complete separation between the two tracks in the negotiations, rather than merging them into a single discussion, as the Danes apparently envisioned.

But whether substantive concerns about the KP’s future fully explain today’s events is open to question The organization of work envisioned by the Danes (as COP president) had apparently received tacit approval at a ministerial meeting held on Sunday. So there is no reason why developing countries that had accepted the work program yesterday should suddenly object today. One possible explanation is that Sunday’s ministerial meeting included only a select group of about forty countries, and today’s work suspension reflected a move by the countries excluded from Sunday’s meeting to reassert themselves. Others speculate that today’s events reflect a reaction by working level negotiators worried that ministers might be too willing to reach agreement. Whatever the explanation, the COP lost the better part of a day, with only two days remaining now before heads of state arrive.

Ultimately, the Danish president convened a ministerial-level group to consider Kyoto Protocol issues, and a series of ministerial-led groups to consider particular issues in the LCA, including: the long-term goal of limiting temperature change (2 degrees, 1 ½ degrees, etc.), the way in which developing country actions are be reflected (a schedule, registry, etc.), and the scale of financial contributions. The other issues in the LCA, not elevated to the ministerial level, will continue to be discussed tonight and tomorrow morning in the various LCA contact groups, with the LCA (in theory) scheduled to wrap up its work tomorrow night and to report back to the COP on Wednesday morning.

Overall the conference is chaotic. Reportedly, some participants spent the better part of the day outside waiting in the registration line. Meanwhile, inside, NGO observers sang songs, strummed the guitar, and organized a “crime scene” with Sherlock Holmes inspecting a chalk drawing on the floor of Africa. With the number of registered participants far exceeding the capacity of the conference, security guards will begin restricting access tomorrow, with each NGO receiving only a limited number of slots.

[As noted earlier, Professor Dan Bodansky is continuing his dispatches on the climate change talks. He is Copenhagen this week and next, and sends us this initial letter from Copenhagen. OJ will be providing additional commentary on the climate change talks — from the conference, and from other academic commentators — over the next week. Dan’s letter is being cross-posted at the Smith School of Enterprise and Environment at Oxford.]

Under grey skies, the Copenhagen Climate Conference began this week in a sprawling complex at the edge of the city. Whether anything will actually happen here to address climate change remains an open question. But the conference is definitely a happening. Reportedly, more than 40,000 people have registered and the conference has dramatically more energy than the lead-up meetings (although that is an admittedly low standard of comparison). Indeed, my sense is that it’s on a bigger scale than any environmental meeting since Rio. And the energy will only build next week, with the arrival of more than 100 heads of state.

In theory, the outlook here should look bright, since the core substantive elements of the “deal” are already on the table. The major emitters have put forward their provisional national emission targets: 20-30% reductions from 1990 levels for the EU, in the range of 17% reductions from 2005 levels for the US, a 40-45% improvement in carbon intensity for China, and a 20-25 % intensity target for India. Although these numbers fall short of putting the world on a pathway towards the goal of limiting climate change to 2 degrees (indeed, there is disagreement whether the Chinese number is any improvement on BAU), I think few realistically expect them to be tightened during the course of the conference (although the EU has criticized both the US and EU numbers as too weak, so I may easily be proved wrong). Similarly, the figure of $10 billion annually in near-term (“fast start”) financial assistance, which the US and EU have endorsed, may not meet the financial needs of developing countries, but I don’t think it will be the subject of further negotiations.

With these substantive elements in place, one might expect a deal to be easy, but the reality is far different. Not only do the various negotiating texts remain a mess, there is still no political agreement on the “architectural” aspects of the regime, including the legal form of the ultimate outcome. The divergence of views is reflected in the two texts that are informally circulating at the meeting: a text that the Danish presidency put forward last month at a pre-COP ministerial meeting, which has drawn significant fire from developing countries; and the BASIC text developed by Brazil, South Africa, India and China (the so-called BASIC group). And the opening days of the session revealed the growing rifts within the G-77 (the developing country negotiating group) between those who favor a weaker and stronger outcome.

The following is a brief summary of the key issues in the negotiations:

[Daniel Bodansky, University of Georgia School of Law and OJ guest blogger, sends this dispatch on the state of the Climate Change talks leading up to the Copenhagen Conference. Professor Bodansky will also be blogging from Copenhagen here at Opinio Juris in December.]

Barcelona, 4 November 2009

The UN climate change negotiations resumed on Monday in Barcelona, after only a three week hiatus since the last round in Bangkok. Between the official negotiations, the parallel political meetings of the major economies forum (MEF), the Commonwealth, and APEC, the numerous bilaterals (including the upcoming Obama visit to China), and the off-line dialogues convened by Denmark, the negotiating process will essentially be non-stop between now and when the Copenhagen Conference begins on December 7.

But progress remains elusive at best. The disconnect between the political urgency surrounding the climate change issue among political leaders and the insular world of the UNFCCC negotiations is growing ever more striking.

On the one hand, most of the key countries or groups – the EU, Japan, China, Brazil, India, South Africa, Indonesia and Australia – have either adopted or appear near to adopting domestic climate change policies. And although enactment of climate change legislation by the United States remains in doubt, a major bill has already passed the House of Representatives and the Senate is now beginning its consideration of similar legislation. So, from the perspective of national climate change policies, prospects have never been brighter. . . .

[Dan Bodansky is the Associate Dean for Faculty Development and Emily and Ernest Woodruff Chair in International Law at the University of Georgia Law School and a leading expert on climate change regulation. He participated in the Bali meeting and contributed this report to Opinio Juris.]

Only in the context of the climate negotiations could Bali be considered a “breakthrough,” as the press is reporting. In the past year, concerns about climate change have led to Nobel prizes, Academy Awards, and changes in governments; but the UNFCCC process continues to creep in its petty pace, ultimately threatening to fall apart at the 11th hour (actually, more like the 30th, since the negotiations went a day extra) over confusion involving a comma. (After Bali, “Eats, Shoots and Leaves” should be required reading for climate negotiators!)

Nevertheless, though Bali fell short of the dramatic breakthrough called for at the UN high level meeting last fall, it does represent a considerable step forward. Significantly, developing countries signaled a greater willingness to take further measures to combat climate change, accepting a negotiating mandate that involves consideration of actions involving them (unlike the Kyoto Protocol’s negotiating mandate, which expressly excluded them). For its part, the United States agreed to “launch a comprehensive process [i.e., negotiations]” to address the post-2012 period, when the Kyoto Protocol’s first commitment period ends (a change from its position at the climate meeting two years ago in Montreal, when it opposed initiating a new round of negotiations). Given the continued opposition by the Bush Administration to legally-binding limits on greenhouse gas emissions, this baby step (bringing the US back to its position in 1991, when the climate change negotiations first began) was about as much as could reasonably be expected from the Bali meeting.

The final plenary (which I missed through colossal miscalculation) was by all accounts one of the most dramatic in recent memory. (A webcast is available on the UNFCCC website). Twice, the Indonesian environment minister, who was serving as the COP President, had to suspend the meeting, due to objections from developing countries that consultations were still underway in another room (apparently unbeknownst to the COP President or the UNFCCC secretariat), under the facilitation of the Indonesian foreign minister. (Talk about lack of coordination within a government!) When the meeting finally reconvened, UN Secretary-General Ban Ki-Moon (who flew back to Bali for the final plenary), together with the President of Indonesia, made impassioned pleas for action. Even then, the meeting threatened to break down, when the United States objected to a proposed amendment by China India. But after the text was clarified by other developing countries, the United States joined consensus, allowing everyone to declare victory.

In today’s New York Times, Thomas Friedman comments that he needed 10 experts to explain the Bali outcome to him – and he was there! I sympathize. Reading climate texts has become like Talmudic exegesis or deciphering a secret code — not something that can easily be undertaken by the outside observer! Each word has a long history, and is typically capable of multiple interpretations.

The two key issues in the negotiations over the so-called Bali Action Plan were: (1) whether to reference in the preamble an IPCC scenario involving 25-40% emission reductions (from 1990 levels) by developed countries by 2020; and (2) the degree of parallelism between the paragraphs of the mandate addressing developed and developing countries.

On the first issue, the European Union pressed hard for inclusion of numbers in the Bali roadmap, in order to signal the overall level of ambition that developed countries aspired to achieve. The “25-40% by 2020” numbers came from the IPCC Fourth Assessment Report, which presented them as one emissions pathway to stabilization of carbon dioxide concentrations at 450 ppm. The United States (supported by Russia Japan, and Canada) opposed the inclusion of numbers, arguing that the numbers not only prejudged the outcome of the future negotiations but were unrealistic and would send a misleading signal to the world. Since 25-40% reductions from 1990 levels by 2020 are considerably more stringent than any of the bills currently being considered in Congress, acceptance of these particular numbers by the United States would, at least in my view, have been hypocritical. Ultimately, the United States prevailed in eliminating reference to any numerical target in the Bali roadmap.

The second issue boiled down to the degree to which the Bali Roadmap would represent a repeat of the Berlin Mandate (the negotiating mandate for the Kyoto Protocol), which had, on the one hand, called for “quantified emission limitation and reduction objectives” for Annex I countries (a list of developed countries originally set forth in the UNFCCC), but, on the other hand, had specifically excluded the possibility of any new commitments for non-Annex I (i.e., developing) countries. This sharp separation between developed and developing countries in the Berlin Mandate was one factor that motivated the 97-0 adoption by the US Senate of the Byrd-Hagel resolution, which in essence represented an advance repudiation of the Kyoto Protocol. Many feared that, if the Bali Roadmap could be characterized as the Berlin Mandate Redux, this would spell doom for ratification of any future agreement by the United States.

Interestingly, although developing countries in Bali continued to press for a strong differentiation between developed and developing countries, few (other than Saudi Arabia) called for Berlin Mandate-type language that would categorically exclude any new commitments for themselves – a significantly more positive approach that ultimately enabled agreement. Instead, they supported less categorical language that called for quantified emission “commitments” by developed countries and for “actions” by developing countries. At the other end of the spectrum, the United States supported a single general provision calling for additional actions (rather than commitments) by all countries. (The proposed provision recognized countries’ different national circumstances, but didn’t draw a bright line distinction between developed and developing countries.) The European Union fell somewhere in the middle, closer to the developing country position.

When it became apparent that the Bali roadmap would include separate paragraphs for developed and developing countries (paragraphs (1)(b) (i) and (ii) of the Bali Action Plan), the United States pushed for the closest possible parallelism between the two provisions. To a significant extent, the United States succeeded in this effort:

On the one hand, the developed country paragraph (para. 1(b)(i)) is less categorical than the Berlin Mandate in what it includes, calling only for “nationally appropriate mitigation commitments or actions, including quantified emission limitation and reduction objectives” (emphasis added). Note that actions are listed here as an alternative to commitments, emission targets are characterized as “objectives” (rather than “commitments” as in an earlier draft) and the reference to “nationally appropriate” suggests significant latitude for differentiation. Moreover, the chapeau for the paragraph calls only for “consideration” of “mitigation actions or commitments,” rather than mandating their negotiation.

On the other hand, the developing country paragraph (para 1(b)(ii)), rather than excluding commitments (as the Berlin Mandate had), expressly calls for consideration of “nationally appropriate mitigation actions.” Since the chapeau for both paragraphs includes the phrase “inter alia,” the reference only to “actions” is not necessarily exhaustive, and does not foreclose proposals for developing country commitments.

The two paragraphs refer to “developed” and “developing” countries rather than “Annex I” and “non-Annex I” parties, thereby leaving the door open (at least a crack) for arguments about which countries fall into which category.

The modifiers “measurable, reportable, and verifiable” apply to actions under both paragraphs.

Finally, other paragraphs of the Bali Action Plan (including, for example, the provision on sectoral approaches) do not differentiate between developed and developing countries.

Despite the US success in watering down the developed country paragraph and leaving important ambiguities in the developing country paragraph, the negotiations nonetheless threatened to implode at the last minute – according to one reliable source, over the placement of the phrase “measurable, reportable and verifiable” in the developing country paragraph. Originally this phrase qualified “actions” (“measurable, reportable and verifiable actions”), but China proposed in a small meeting earlier in the week that it be moved to the end of the paragraph, where it would qualify only language regarding technology, financing and capacity-building by developed countries in support of developing country actions. A compromise suggestion had been made to insert a comma before the phrase “measurable, reportable and verifiable” so that it would arguably qualify everything in the paragraph (both developing country actions and developed country support). But when India raised the issue in plenary on the final day (reading out the proposal orally), the United States reportedly was not sure whether the Indian proposal included the comma or not, leading it to object, fearing that moving the phrase to the end of the paragraph, without a comma, would water down the language referring to developing country actions. Only when developing countries clarified that they intended to include the comma did the United States finally join consensus. (Why the United States didn’t seek a clarification first, rather than objecting, is not clear.) Thus, for want of a comma, the Bali meeting was almost lost!

The result, as Friedman notes in his column today, represents only an incremental step, not the kind of bold transformation that many think is needed, given the severity of the climate problem. Moreover, the difficulties in negotiating the Bali Roadmap do not bode well for the treaty negotiations that will now commence. Despite the Bali decision, many countries (the United States foremost among them) still appear unprepared for serious negotiations – certainly, not until after the US Presidential elections next year. To make real progress, what is needed, above all, is US domestic action, along the lines of the Lieberman-Warner bill that was reported out of committee last week (but faces doubtful prospects on the floor and a likely Presidential veto), to demonstrate that the United States is finally serious about the climate change issue. Nevertheless, the willingness of both developing countries and the United States to accept an open-ended mandate for future negotiations is welcome news.

[Dan Bodansky, the Emily and Ernest Woodruff Chair in International Law at the University of Georgia Law School, is a leading expert on climate change and is co-editor of the recently published Oxford Handbook of International Environmental Law. This post is part of an Opinio Juris roundtable discussion of the international law dimensions of the Mass. v. EPA decision.]

As usual, commentators are already busy re-litigating Massachusetts v. EPA, with environmentalists claiming a great victory and some conservatives consoling themselves that the Court’s holding about the Clean Air Act may not have a huge practical effect. I’m never quite sure whether this is all an exercise in spin – a calculated attempt to reshape reality by portraying it to one’s own advantage – or whether the divergent portrayals reflect the psychological tendency to square the world with our preconceptions. Regardless, the question remains: Who is right? What effect will the court’s decision have on climate change policy?

The most direct result of the Court’s holding would be to induce EPA to regulate emissions of carbon dioxide under the Clean Air Act, but I think that this is the least likely effect. Sure, the Administration may attempt to regain the initiative by a show of action. But although I’d love to be proven wrong, I have a hard time imagining the Bush Administration suddenly seeing the light and deciding to do anything real. Certainly, the Administration’s early reaction to the decision suggests that it intends to continue business as usual.

But while the decision may not lead directly to EPA regulation, it has changed the political landscape. First, the decision adds to the growing chorus about the threat of global warming. From a scientific standpoint, the Court’s voice may be relatively minor – really more of an echo than an independent source. The report issued last week by the Intergovernmental Panel on Climate Change is of much greater scientific significance. But, nonetheless, the Court’s imprimatur provides added legitimacy to the issue. Second, the decision further isolates the Bush Administration and discredits its reliance on voluntary measures. If we want to get serious about climate change, the court in essence says, some type of government regulation is needed. Third, the decision may signal how the Court will rule in future cases – for example, regarding whether states such as California can impose fuel efficiency standards or adopt other types of climate change measures. For all of these reasons, the decision increases pressure on Congress to act now, rather than leave the issue to the rule-making authority of the EPA or to a patchwork of state policies. As one Washington insider observed, “All roads now lead to Congress.”

From an international standpoint, will the Court’s decision help or hurt? In its brief, EPA had argued that requiring carbon regulation under the Clean Air Act could weaken US diplomatic efforts to persuade developing countries to take action against climate change. This argument is disingenuous, at best. If the US were actually engaged in negotiations with developing countries to limit emissions, EPA’s argument might at least have had the virtue of sincerity. But, in fact, the Bush Administration has made no effort to negotiate emission reductions on a reciprocal basis; instead, it has done the reverse, joining forces with developing countries in trying to block negotiations on future commitments.

The Bush Administration’s foreign policy argument about the effect of the Court’s decision is not only hypocritical; it is also wrong substantively. Far from undermining efforts to negotiate a stronger international climate change regime, unilateral regulation of emissions by the United States would be a tremendous boost to the negotiating process. Currently, lack of US action provides an easy excuse for developing countries – if the world’s richest country, and biggest emitter, isn’t taking action, why should developing countries be expected to do so? Strong US domestic action would change this dynamic, and give the US credibility in seeking stronger developing country measures. One can see the importance of leadership in California’s climate change program, which has put the pressure on others to take similar action. At least in the environmental realm, international progress has tended to grow out of domestic action, rather than the other way around.

After years in the doldrums, the climate change issue has now reemerged with greater urgency than ever. At a meeting that I attended a year and a half ago at Yale, Jeff Sachs predicted that the United States would get serious about climate change even before the next Administration came into office. At the time I thought that this was wishful thinking. But events since then suggest that Sachs may be right after all. Of course, we still have a long way to go. But the Court’s decision last week gives a significant boost to the climate change cause.

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